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I don't have to remind you that it's not nice to have sex with your partner while experiencing a flare up of your genital herpes–especially when you stay silent on the subject in the darkness of your love romp.

But for any of you that fail to abide by such niceties, there is now case law from the Appellate Division, First Dept., that may persuade you to change your ways. In Felter v. Feigenbaum , NY Slip Op 00012 (1st Dept. 2010), plaintiff sued defendant for negligent transmittal of genital herpes simplex II. Following discovery-related motion practice, the First Dept. held that defendant must submit to a blood test that would be determinative of whether or not he has the virus.

Though defendant attempted to evade the test by claiming that undergoing it, and delivering the results to plaintiff, would violate the physician-patient privilege, the Court dismissed such reasoning out of hand, since the test “was ordered in conjunction with the litigation.”

Moreover, the Court noted that even if the privilege were to apply, defendant waived it when he asserted the affirmative defense that he was asymptomatic.

But you didn't need this decision to get you to do the right thing, right?

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About the Author

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

• $250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

• $200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.

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